GARNETT -v- QANTAS AIRWAYS LTD [2021] WASCA 110 (30 June 2021)

GARNETT -v- QANTAS AIRWAYS LTD [2021] WASCA 110 (30 June 2021) - WASCA 2021 case summary — Zoe

[10]

On 23 July 2014, Mr Garnett filed a writ of summons alleging negligence against Qantas.
On 18 August 2015, Qantas applied for leave to issue third party proceedings pursuant to O 19 r 2 of the Rules of the Supreme Court 1971 (WA) against Karratha and Skystar. Qantas claimed against each of Karratha and Skystar for an indemnity against, or contribution to, any liability that it had to Mr Garnett (Qantas' contribution claim).
In Qantas' contribution claim against Karratha, Qantas alleged that (1) the Karratha Airport Agreement included an implied term to the effect that Karratha would provide safe access for passengers disembarking aircrafts and entering the terminal building at Karratha Airport (safe access implied term), alternatively an implied term based on the implied warranty accepted by the High Court in Watson v George[4] (Watson‑type implied term), and (2) Karratha had breached those terms.[5]
Mr Garnett sought leave to add Karratha and Skystar as defendants to his action. Leave was granted on 5 October 2015. Mr Garnett claimed against Karratha in negligence for breach of s 5 of the Occupiers' Liability Act 1985 (WA) (OLA), read with s 5B of the Civil Liability Act 2002 (WA) (CLA). His action against Skystar was in negligence in accordance with s 5B of the CLA.[6]
On 8 November 2016, Karratha issued a notice of contribution claiming an indemnity or contribution from Skystar (Karratha's contribution claim).[7]
On 24 November 2017, Skystar filed an amended notice of contribution claiming an indemnity, or contribution, and/or apportionment of liability, from Qantas and Karratha (Skystar's contribution claim).[8]
Karratha counterclaimed in Skystar's contribution claim (Karratha's counterclaim). Karratha contended that pursuant to cl 6.2 of the Lease agreement between Karratha and Skystar, Skystar was obliged to effect public liability cover on behalf of Karratha of not less than $10 million, which it had not done. Karratha sought damages for breach of the Lease for an amount equivalent to any liability that it was found to have to Mr Garnett.[9]

[33]

Throughout 2012, the Karratha Airport operated such that passengers disembarking and boarding aircraft were required to make their way on foot between the terminal and the aircraft parked at bays 1 and 2 on the apron area of the tarmac. The terminal was situated north of the tarmac. There were three footpaths running north/south from the terminal toward the aircraft bays on the tarmac used by departing passengers to make their way from the terminal to the aircraft (departure paths). To the west of those three paths, there was another path. This path was used by arriving passengers to make their way from the tarmac up to the terminal (arrival path).[33] Each of these paths joined a passenger walkway that ran east/west, parallel to the tarmac. The passenger walkway was located just north of the apron area of the tarmac (passenger walkway).
In an area between the passenger walkway and the apron near the departure paths close to aircraft bays 1 and 2 was a concrete plinth at the base of a 30 m‑high lighting tower.[34] There were lights at the top of the lighting tower which were angled to illuminate the apron area of the tarmac where aircraft parked.[35]
Prior to June 2012, the area surrounding the plinth between the apron and the passenger walkway was grassed and therefore it was distinguishable from its surrounds. Star pickets and bunting ran along the northern side of the plinth. The star pickets and bunting that were in place before June 2012 had been installed by Karratha.[36]
In mid-June 2012, works were conducted by Karratha in respect of the area around the base of the lighting tower. The grassed area at the base of the lighting tower was removed and replaced with concrete.[37]
The effect of the concreting work in June 2012 was that the formerly grassed area effectively became part of the passenger walkway. The grassed area was concreted in a similar grey colour to the plinth. The star pickets and bunting, which had previously been positioned so as to keep pedestrians off the grassed area and away from the concrete plinth, were taken down and not replaced after the concreting work had been completed. No star pickets were in position as at 4 November 2012.[38]
Her Honour found that Karratha had the authority and 'exclusive responsibility' to make any changes 'airside'. This included the erection and removal of star pickets, painting of the plinth, or any changes to lighting airside.[39] ('Airside' referred to the area outside of the terminal including the baggage bay, and included where the plinth was located.[40])
After the concreting work was completed in June 2012, Skystar staff occasionally positioned a wheelie bin at the north-east corner of the plinth and tied bunting from the bin to the lighting tower itself. Depending on precisely where the bin was placed, some part of the plinth protruded into the path of disembarking passengers.[41]
On 4 November 2012, the north-east corner of the plinth protruded into the pathway for between 300 mm and 1,000 mm. That meant that passengers walking from the aircraft to the terminal were channelled into the path of the protruding plinth.[42]

[34]

On Sunday 4 November 2012, Mr Garnett was a passenger on QF 918 from Perth to Karratha. He worked on a fly-in/fly-out basis and was a regular traveller to and from Karratha Airport.[44]
Flight QF 918 was scheduled to arrive at Karratha Airport at 6.30 pm. That evening, the weather was clear but windy with the wind blowing from the north.[45] Sunset occurred at 6.24 pm that day.[46]
At some time before 6.46 pm on 4 November 2012, Mr Garnett disembarked the aircraft via the rear stairs and followed a path across the tarmac to the terminal.[47] Mr Garnett described the lighting at the time he was disembarking, as 'a bit on the gloomier side. The sun had gone down, but you still got a little bit of the effect of the rays and the sun. But basically it was sort of on the way to going towards dark'.[48]
As Mr Garnett walked to the terminal, he was in the middle of a group of passengers and there was a group of passengers to his right.[49]
A path for the passengers to follow was designated on the left side by bunting with flags strung between wheelie bins. Mr Garnett was following the bunting up to the terminal entrance. At the intersection of the tarmac and a footpath leading to the terminal, bunting was tied between a wheelie bin and around the lighting tower itself (but not the plinth at the base of the lighting tower).[50]
As Mr Garnett walked towards the terminal the path did a dogleg to the left at the passenger walkway which ran along a garden bed to the terminal entrance. The passengers as a group started to move over to the right as Mr Garnett noticed a lighting tower.[51]
Mr Garnett did not make it to the lighting tower because his left foot struck the north-east corner of the plinth at its base causing him to trip and fall.[52] Mr Garnett did not see the plinth before his foot struck it.[53] He fell onto his hands and landed on his elbow. When he fell to the ground he had his laptop in a backpack on his shoulder, which also fell to the ground. He fell on his phone and grazed the fingers on his right hand.[54]
As a result of his fall, Mr Garnett required a number of surgical procedures including two left knee replacements, and will require further surgery in the future.[55]
On 5 November 2012, Karratha had the plinth painted yellow and star pickets with flagging were erected around the base of the plinth.[56]
Before the plinth was painted yellow the lighting tower cast a shadow over it at dusk.[57]
In 2016, permanent railings were installed along the walkway alongside the lighting tower, which 'made it a lot safer', and zebra crossing lines were painted on the angle at the front of each aircraft bay on the tarmac.[58]

[36]

Mr Garnett claimed that Karratha owed a duty of care to passengers crossing the tarmac/pathway 'pursuant to the OLA and the CLA'.[59] It was not in dispute that Karratha was the relevant 'occupier' of Karratha Airport at the material time for the purposes of s 2 of the OLA.[60]
The judge, in effect, agreed with Mr Garnett's characterisation of the relevant risk as 'a foreseeable risk that a passenger following the designated pathway would not see the corner of a low plinth protruding into the pathway and trip and fall, thereby suffering injury'.[61]
As to the foreseeability of the risk, the judge said that it was clear from the evidence that Karratha employees were airside daily and that those employees were well aware of the wheelie bin/flagging system used by Skystar. The judge observed that, as part of that system, the lighting tower was sometimes used to tie the rope with bunting around. Regular ramp meetings were held to discuss issues such as passenger safety between Karratha and Skystar. Further, Karratha was the only entity permitted to erect or paint any structures airside and was responsible for lighting the area at the base of the lighting tower. The judge was satisfied that the danger represented by the protruding plinth was, in part, due to the state of the premises.[62]
The judge said that this case could be contrasted with, and distinguished from, those involving an uneven surface in a suburban driveway,[63] or the situation of a pedestrian walking along a suburban street. Her Honour said, in this case, the presence of the protruding corner of the plinth at ankle height into a pedestrian walkway was not likely to have been expected. One would not expect such a protrusion into a designated pathway by a permanent structure of the same colour as the pathway.[64] In the circumstances, the judge concluded that it was reasonable to expect that passengers walking from the aircraft across the tarmac carrying hand luggage and perhaps talking to one another would include those who were distracted or inattentive. The risk of a passenger not seeing the plinth and tripping on it in those circumstances was foreseeable and not an insignificant risk, it was more than far‑fetched or fanciful.[65]
The judge rejected Karratha's plea that the risk of tripping was an 'obvious risk' within the meaning of s 5F of the CLA. Her Honour was satisfied that the risk of tripping on the plinth the same colour as the surrounding pathway would not have been obvious to a reasonable person in Mr Garnett's position.[66] In making this finding, her Honour noted that the plinth was an unusual shape, and while the tower itself was so obvious so as not to require a warning, the extension of the plinth to the east, when one would have expected a square of equal proportions at the base, was not obvious.[67]
Her Honour considered the matters under s 5B(1) and (2) of the CLA, and concluded that Karratha had breached its duty of care to Mr Garnett under the OLA read with the CLA by:[68]

[58]

The judge found that the safe access implied term was a term implied into the Karratha Airport Agreement, and that Karratha had breached that term during the period June 2012 to 5 November 2012 by the exposed plinth creating a tripping hazard.[84]
The judge said that the safe access implied term met the criteria set out in BP Refinery (Westernport) Pty Ltd v Shire of Hastings[85] in respect of formal written contracts and the criteria in Hawkins v Clayton[86] relating to informal agreements.[87]
The judge considered that it was reasonable and equitable that Karratha be responsible for providing a safe access route for an airline's disembarking passengers when that airline is paying to access and use the airport.[88] The fact that Qantas contracted Skystar to marshal passengers, and that Skystar had contractual obligations to do so safely, did not undermine the reasonableness (or necessity) of the term that Karratha would provide safe access.[89]
The judge also found that the safe access implied term was reasonable on the basis that neither Qantas nor any ground handler engaged by it to marshal passengers could effect any structural changes to the access route.[90]
The judge rejected a submission by Karratha that the safe access implied term was not necessary because hundreds of thousands of passengers had landed at Karratha Airport without incident until Mr Garnett's accident.[91] The judge also rejected Karratha's argument that the term was not necessary because it had its own obligations to passengers under the OLA. Her Honour said that Karratha could owe separate (and partly overlapping) obligations to entrants under the OLA and to Qantas in contract, and that the co-existing obligation to entrants was not a reason to deny the implication of a contractual term owed to Qantas by Karratha.[92]
The judge said, in effect, that the Karratha Airport Agreement would not operate reasonably or effectively without the safe access implied term. Qantas could not use the airport for the intended purpose of the contract without assurance of safe access, and only Karratha (with sole control over the airport infrastructure) could provide a safe access route.[93]
In respect of Karratha's contention that a properly advised party would not have agreed to the safe access implied term, the judge found that, at the time of contracting, it was difficult to see the basis upon which Karratha could, and would, legitimately:
1. allow Qantas to access and use the airport in exchange for fees and charges;
2. continue to control the airside infrastructure; and
3. not permit Qantas to make permanent or structural changes,

[66]

The plaintiff can recover damages if, and only if, the hurt which she has sustained arose from the defendant's negligence. But negligence means the breach of some duty to take care which the law imposes. The existence and the extent or measure of such a duty must be a primary, and it often is the principal, question in determining liability. The defendant retained control or occupation of the land upon which the building stands, of the paths, the lawns and the approaches, in fact of the entire premises except the flats actually let to tenants. The duty of care imputed to her depends upon this occupation or control. But possession of property is not in itself the source of any obligation with respect to its state or condition. Its use or enjoyment may be attended with as much, or as little, hazard as the occupier chooses, if he retains exclusive enjoyment of the perils as well as of the advantages of occupation. The circumstance which annexes to occupation the duty of care, when it exists, is the presence or proximity of others upon or to the premises occupier. It is because the safety of such persons may be endangered that the obligation of care arises. But as the purpose of the obligation is that those who come may go unharmed, the existence and the extent of the duty must depend upon their title to be there, upon the object with which they come, upon the occupier's interest in their presence. Further, the duty may be discharged although the condition of the premises themselves remains dangerous, if other steps, considered adequate for the purpose, are taken to avert harm to the individual. The circumstances in which one man may lawfully come upon premises in the occupation of another are infinitely various and as his lawful presence there must raise some duty of diligence, however slight, for his safety, it might be considered consonant with general principle to measure the standard of care required by determining as matter of fact what amount of care in all the actual circumstances of each particular case the reasonable man would exercise. But English law has adopted a fixed classification of the capacities or characters in which persons enter upon premises occupied by others, and a special standard of duty has been established in reference to each class. Many of the circumstances which might have been considered in reference to the precautions required go now only to the question in what character did the sufferer come upon the premises. Apart from contractual relations (Maclenan v Segar), and the execution of an independent authority given by law (Great Central Railway Co v Bates; Low v Grant Trunk Railway Co), he who enters upon land occupied by another does so in one or other of three characters. The duty owing to him is measured or defined by reference to the category to which he belongs. He comes as a trespasser, as a licensee, or as an invitee. The separation is absolute between these three classes, which are mutually exclusive. A different duty is incurred by an occupier to each class, and these various duties are not to be confused or assimilated. In determining the liability of an occupier, it is imperative that a decision should first be reached fixing the class to which the person belongs who complains of injury. When that has been done, the case must be governed altogether by the standard of duty prescribed for that class (see per Viscount Dunedin in Robert Addie & Sons (Collieries) v Dumbreck). (emphasis added)

[68]

If there be any acceptable basis in principle for a conceptual differentiation between the 'special duties' of an occupier to a lawful visitor and the ordinary common law duty of care, it must be found in a distinction between the state or 'static condition' of premises on the one hand and activities upon premises on the other. It has, however, been demonstrated both in judgments (see, eg, per Pearson LJ, Videan) and learned writings (see, eg, G Hughes, 'Duties to Trespassers: A Comparative Survey and Revaluation', Yale Law Journal, vol 68 (1959), pp 697 ‑ 698) that to treat any such distinction as a rigid barrier between different duties is in its own way as artificial and unsatisfactory as is the determination of the existence and scope of a duty of care by reference to rigid and possibly forced characterisation of a visitor as invitee, licensee or trespasser. The general notion of the distinction between the static condition of land and activities upon it may well be material in determining whether the necessary relationship of proximity exists under ordinary principles and, if it does, the content of any relevant duty of care. As a rigid line of demarcation between different and independent duties however, it is arbitrary and largely unworkable and should be rejected for reasons both of principle and of policy.

...

It follows that there no longer exists any proper basis for a refusal to accept as authoritative ... that the rules concerning the liability of occupiers are part of the general law of negligence and that the so‑called 'special duties' owed by an occupier to a person lawfully upon his land are instances of the duty of care arising under that general law in the circumstances of the relevant category of case.

...

That being so, it is not necessary, in an action in negligence against an occupier, to go through the procedure of considering whether either one or other or both of a special duty qua occupier and an ordinary duty of care was owed. All that is necessary is to determine whether, in all the relevant circumstances including the fact of the defendant's occupation of premises and the manner of the plaintiff's entry upon them, the defendant owed a duty of care under the ordinary principles of negligence to the plaintiff. (footnote omitted)

[100]

On a consideration of the OLA as a whole, the phrase 'standard of care' in the long title is evidently used to refer (amongst other things) to the nature and extent of the 'obligation' in s 5(1), which is elsewhere described as a 'duty' (in s 5(2), s 5(3) and s 5(4)), as well as to the (non‑exclusive) mandatory factors in s 5(4) to be applied in determining whether the occupier has 'discharged his duty of care', ie, whether there has been a breach of duty. Although not in terms, it is necessarily implicit in s 4(1) read with s 5, in the context of the OLA as a whole and having regard to the legal context in which it was enacted and its evident purpose, that the measure of the discharge of the obligation (or duty) in s 5(1) is what a reasonable person would do by way of a response to a foreseeable risk of injury. The observations of the High Court in Thompson referred to at [88] above would have equal application in the consideration of whether an occupier has discharged its duty of care for the purposes of s 5 of the OLA. As Anderson J noted in Tonich, it is a question of fact in each particular case whether the duty expressed in s 5(1) of the OLA has been discharged.
It may be noted that, in Bryant, Murray J appears to have considered that, for the purposes of the OLA, the common law supplies the duty of care and the provisions of the OLA are concerned only with the standard of care (in the sense of the measure of discharge of the duty).[128] His Honour did not adhere to that view in Kschammer, and, in our respectful opinion, it is inconsistent with the text of the OLA on its proper construction. However, there is no reason to doubt the correctness of Murray J's observation to the effect that the common law (prior to the commencement of the CLA) would supply the principles relating to causation for breach of an occupiers' duty under s 5(1) of the OLA.
Section 7 deals with the circumstance where the entrant to the premises, although on the premises pursuant to a contract between the occupier and another party, is not himself or herself directly a party to that contract. Section 7 was enacted against the background of authority to the effect that at common law, an occupier could restrict or exclude liability to persons on the premises who were not themselves parties to the contract concerning entry to the premises.[129]

[101]

On the judge's unchallenged findings at primary decision [179], the Karratha Airport Agreement[130] was to the effect that in consideration of Karratha allowing Qantas to use the airport land (land) for Qantas' operations as an airline carrier, Qantas agreed to pay Karratha certain specified fees and charges, being (1) a security infrastructure charge, (2) an aircraft landing fee, and (3) a 'passenger service charge'. The 'passenger service charge' was a charge of $11.33 'per arriving and departing passenger'.[131]
The Karratha Airport Agreement is a form of contractual licence for commercial purposes. On its proper construction, it authorised Qantas' employees, agents (including in the sense of persons engaged by Qantas to effect the performance of its operations as a carrier) and passengers to be on and use the airport land for Qantas' operations as a carrier.[132] The judge found that Skystar's authority to work 'airside' derived from the Skystar Ground Handling Agreement.[133] Qantas' authorisation of Skystar to be on and use the airport for Qantas' operations ultimately derived, however, from the Karratha Airport Agreement.
Prima facie (although it is not necessary to reach a final conclusion on this point), the Karratha Airport Agreement, on its proper construction, would not authorise members of the public greeting or farewelling Qantas' passengers to be on and use the airport land. Members of the public are, prima facie, licensees directly of Karratha, rather than persons coming within the scope of the contractual licence with Qantas under the Karratha Airport Agreement.
For the reasons in [111] ‑ [122] below, Karratha impliedly warranted to Qantas (the warranty being implied by law) that the land was and would remain, during the currency of the Karratha Airport Agreement, as safe as reasonable care and skill on the part of anyone could make it for the purpose of its use as an airport, subject to the limitation that Karratha is not responsible for defects which could not have been discovered by reasonable care and skill on the part of any person concerned with the construction, alteration, repair or maintenance of the land.
In Francis v Cockrell,[134] the defendant (occupier) erected a grandstand for the purpose of viewing the races, and admitted patrons at a cost of 5 shillings per head. The grandstand was negligently and improperly constructed by a contractor (but not to the defendant's knowledge), and, as a consequence, fell and injured the plaintiff who had been admitted to the grandstand upon payment of the charge. The head note records, 'the plaintiff could maintain an action against the defendant [occupier] for the damage sustained, although the defendant was personally free from negligence, and had employed a competent person to erect the stand'.
In Maclenan v Segar,[135] in a passage adopted by Fullagar J (Kitto J agreeing) in Watson,[136] McCardie J summarised his Lordship's understanding of the relevant principles, as follows:[137]

[114]

That the hall was kept by the Council for the ordinary purposes of a public hall·and let out for use for short periods, is a circumstance of overriding importance. It attracts by analogy an ancient principle of the common law concerning things, for example vehicles or boats, kept for hire to the public - a principle that ought not, at this day, to be denied application to buildings and structures merely because they are affixed to land. The matter has been discussed in cases in the United States, especially in the State of New York. There it may be said to be established that a person who lets out property for public purposes, such as an assembly hall, is under a duty to members of the public to see that it is reasonably safe for the purpose for which it is let. The cases are numerous. It is enough to mention Friedman v Richman; Johnson v Zemel and Junkermann v Tilyou Realty Co. In the last‑mentioned case Cardozo J, speaking of Cavalier v Pope and the proposition that there is no law against letting a tumble-down house, said: 'That statement depends for its accuracy upon many conditions. It is not true if the building is to be used by the public'. We may accept that qualification of the general immunity of a landlord, without disregarding authority binding on us. We are not dealing with a building let as a dwelling-house or for similar private purposes. No departure from the tradition of the common law is involved in asking what does the law require of those who keep halls for hire to the public. Of course we must not put their obligations higher than law and good sense combine to demand. Throughout the land there are public halls of varying type, age and size. Some are vested in local authorities, some in trustees; some are managed by schools of arts committees; some belong to church bodies or other voluntary organizations. Those who control them, the occupiers in point of law, are not insurers of the safety of all those who use them. They have, however, a duty of care. And the measure of that duty (where it is not prescribed by statutory provisions for the licensing and inspection of theatres and halls) is in my opinion the same as that laid down in Francis v Cockrell. (emphasis added) (footnotes omitted)

[115]

This line of authority applies equally to the Karratha Airport Agreement, under which Karratha, for reward, provided the airport land for public purposes in respect of Qantas' operations as an airline carrier. Absent any terms to the contrary (and there were none), the Karratha Airport Agreement contained the Watson‑type implied term referred to in [110] above.
Karratha's submissions to the contrary, referred to in [80] above, cannot be accepted. That is for the following reasons:
1. Whilst Karratha owed a general duty to all users of the airport as occupier under s 5(1) of the OLA, that does not preclude the existence of the Watson‑type implied term in Karratha's contract with Qantas. The Watson‑type implied term has continued operation under the common law, notwithstanding the change in the common law brought about by the High Court's decision in Australian Safeway Stores (see [116] above). There is no reason to suppose that the legislature (objectively) intended to bring about a different result by an enactment which presaged that change to the common law. Moreover (unlike s 5(1) of the 1957 UK Act), s 8 of the OLA expressly preserves the higher standard applicable under the Watson‑type implied term. That conclusion is reinforced by the (inclusive) reference in s 8(1) to the obligations of common carriers, and where the Watson‑type duty has been said to be a reflection of the early law concerning the common callings, such [151]carriers.151
2. Whilst Karratha assumed no obligation to Qantas' passengers to marshal passengers in the course of the disembarkation process, it was nevertheless the occupier of the premises for the use of which it charged Qantas fees. The occupation of premises 'is a ground of liability and is not a ground of exemption from liability'.[152]
3. There is no inconsistency between the implied term and s 4(1) of the OLA for two reasons. First, s 4(1) is, and the observations of Anderson J in Tonich (set out in [103] above) were, directed to the 'rules of the common law' concerning the tortious duty or duties owed by an occupier of premises, as explained by Dixon J in Lipman (see [82] ‑ [83] above). Contractual duties are different in that the partie[153]ay negotiate for their exclusion.153 Secondly, s 4(1) of the OLA is, and Anderson J's observations in Tonich were, concerned with the operation of s 5 ‑ s 7 of the OLA. The higher standard of the Watson‑type implied term is expressly preserved by s 8 of the OLA.
4. A company (in this case, Qantas) cannot enter or use Karratha's land for airport operations except through the actions of humans whom it engages for that purpose. Those persons are not on the airport land under a direct licence from Karratha. Nevertheless, under the general law principles referred to in [115] above, the obligations of the Watson‑type implied term enure for their benefit. There is no reason in principle why the considerations which lead to the imposition of the implied term in law should have any less force where the contracting party is a corporation rather than an individual.
It follows from the foregoing discussion that there was an implied warranty in the Karratha Airport Agreement in the terms referred to in [110] above (ie, the Watson‑type implied term). Karratha correctly submitted that, if a Watson‑type implied term is implied as a matter of law, there would be no scope to imply the safe access implied term found by the judge as a mat[154] of fact.154 Such an implied term in fact is not necessary for the reasonable or efficient operation of [155] contract155 when, within the same general sphere of operation, the Watson‑type implied term is implied as a matter of law. Given the common ground between the parties as to that matter, it is unnecessary to determine whether the term found by the trial judge is of sufficient clarity, and reasonable in its operatio[156]nd scope,156 to have been implied as a matter of fact if a Watson‑type implied term were not implied as a matter of law.
On the question of breach, Karratha contended that there was no breach of the Watson‑type implied term on the basis of the matters advanced in respect of ground 1 of its appeal in CACV 140 of 2019 (ie, the matters the subject of issue 2 in the appeal). For the reasons given in relation to issue 2 of the appeal (considered next), that contention cannot be accepted. Accordingly, Qantas' notice of contention succeeds.

[119]

Accordingly, employees of [Karratha] could only have known that the employees of Skystar had set up the bins and bunting in such a way that a corner of the plinth was protruding into the designated pathway if they or some of them had been present near the lighting tower at the time or immediately after the wheelie bins and bunting had been set up. There was no evidence that any employee of [Karratha] was near the lighting tower at either of those times.
Therefore it cannot be found that [Karratha] knew or ought to have know of the risk identified by the learned trial judge. (footnotes omitted)
In oral submissions, Karratha accepted that the relevant risk of injury could be stated as the risk of tripping on the elevated plinth.[162]
Mr Garnett submitted that:[163]
1. Karratha has mischaracterised the nature and extent of the risk identified by the judge. The relevant risks included that Skystar staff would 'misplace' the bin and bunting such that the plinth protruded into the pathway of passengers. In the system adapted by Skystar, part of the plinth could, and, on occasions, did, protrude into the path of 'unsuspecting' passengers. Accordingly, the risk was that passengers being channelled down the pathway towards the plinth would not see or notice the protruding plinth and trip and fall.
2. The relevant risk, as found by the judge, was not the risk of injury arising from how and where the wheelie bins were placed on the day of the accident. Rather, the risk was the risk to passengers in circumstances where Skystar's system included, on occasions, the placement of wheelie bins in locations where the plinth protruded into the path used by disembarking passengers.
3. Karratha knew, or ought to have known, of the risk because it created the risk by the works carried out in mid‑June 2012, and it knew, or at least ought to have known, that Skystar used a wheelie bin system which, on occasions, involved leaving the plinth protruding into the pathway.
4. An officer of Karratha (Mr Swetman) conceded in evidence that, as a result of the works done by Karratha in June 2012, it was clear that the plinth area had become 'dangerous'.[164]
5. Further, Karratha's contention on appeal that the risk was not reasonably foreseeable is contradicted by its case at trial. At trial, it did not contend that the risk was not reasonably foreseeable; rather, it contended that the risk was an 'obvious risk'.[165]

[120]

The judge's reference at primary decision [61] to 'designated pathway' is, on the proper construction of her Honour's reasons, a reference to that part of the premises between the tarmac at landing bay 1 and the terminal, including a concreted area which, together with the passenger walkway, effectively formed a single pathway[166] leading up to the arrival path, and on which pathway the plinth at the foot of the lighting tower is located.
The plinth, although sitting higher than the area around it, was of the same colour as the pathway and was otherwise indistinguishable from the pathway. It created a trip‑hazard for disembarking passengers.[167]
On the unchallenged findings of fact,[168] Karratha, through its employees, was 'airside' daily, and was well aware of the plinth and its location, and that as part of Skystar's wheelie bin/flagging system, the lighting tower was sometimes used to tie the rope with bunting around, leaving the plinth protruding into the pathway.[169] Whilst Karratha may not have known in advance how Skystar would set up the wheelie bins and bunting for each plane that landed, it did know that under Skystar's system for marshalling passengers, the plinth was left protruding into the pathway from time to time.
It was reasonably foreseeable that disembarking passengers using this part of the airport land between the tarmac and the arrival path to the terminal could trip and fall over the plinth, unless it were cordoned off or otherwise made distinguishable to passengers disembarking. Karratha knew it was not always cordoned off and it knew (as was the case) that it had left the plinth in a state indistinguishable from the pathway since the June 2012 works.
Further, at trial, Karratha's contention was not that the risk was not reasonably foreseeable by Karratha, but that it was an 'obvious risk' to passengers such as Mr Garnett in using this part of the airport to proceed from the tarmac at landing bay 1 to the access way to the airport terminal.[170] This, in itself or together with the evidence of Mr Swetman referred to in [130.4] above, readily confirmed an inference that Karratha was aware of the foreseeable risks of injury found by the judge.
Accordingly, the judge was correct to find that the risk was reasonably foreseeable in that it was a risk which Karratha knew or ought to have known within the meaning of s 5B(1)(a) of the CLA.
It should be added that Karratha did not contend that if the risk were foreseeable, the risk was something other than 'not insignificant' for the purposes of s 5B(1)(b) of the CLA. Further, Karratha's contention to the effect that it was the responsibility of Skystar to cordon off the exposed plinth goes to the question of whether, in the circumstances, a reasonable person in Karratha's position would have taken no precautions to guard against the foreseeable risk on the basis that Skystar could be expected to address it. That goes to the issue raised by s 5B(1)(c) of the CLA, and Karratha did not contest the judge's findings in this regard.[171]

[170]

This appeal concerned an action by Mr Waxman and his wife, alleging that the defendants negligently caused Mr Waxman to sustain injuries during an international flight. Mr Waxman claimed that his injuries were caused when he was stuck in his leg by a hypodermic needle that was protruding from the fabric of the seat immediately in front of his seat. Mr Waxman sought compensatory damages from the carrier, Mexicana De Aviacion, SA De CV (Mexicana), and the airline's cleaning subcontractor, Signature Flight Support Corporation (Signature). Mexicana had contracted directly with Deutsche Lufthansa AG, (Lufthansa) to carry out services, including cleaning. Lufthansa, in turn, had subcontracted its aircraft cleaning duties to Signature. The contract between Mexicana and Lufthansa, and the subcontract between Lufthansa and Signature, specified that Lufthansa and Signature respectively agreed to '[c]lean and tidy flight deck according to the Carrier's instructions and, if specified, under the control of a person authorised by the Carrier through the completion of numerous designated tasks, including emptying ash trays, disposing of litter, mopping floors, and clearing waste from seat back stowages and racks'.
The defendants filed a motion for partial summary judgment seeking in effect a declaration that the aggregate amount of damages recoverable in the action was limited to US$75,000, pursuant to the limits on liability imposed in the Warsaw Convention as updated by the Agreement Relating to Liability Limitations of the Warsaw Convention and the Hague Protocol (Montreal Agreement).[189] In opposition to the application Mr Waxman asserted that a subcontractor could not be considered a carrier under the Warsaw Convention and therefore could not benefit from its liability limitations.
The court granted the defendants' partial summary judgment. On the issue of whether the limitations on liability in the Warsaw Convention applied to Signature as a subcontractor, the court found that the liability limitations afforded to carriers under the Warsaw Convention extended at least to their employees and agents who perform services fundamental to, or in furtherance of, the carriage enterprise, and which the carrier itself would be bound to perform - even if not technically required by statute - pursuant to its contract with its customers. The court saw no logical reason, and noted that it had not been presented with any persuasive contrary argument, as to why this principle should not apply equally to the subcontractors of a carrier's agent, especially where, as here, the subcontracting agreement explicitly required the subcontractor (through the agent) to perform its services 'according to the Carrier's instructions'. The court concluded that it would be elevating 'form over substance' to hold that parties to valid subcontracting agreements with a covered entity are not protected from unlimited liability under the Warsaw Convention.

[181]

There can be little doubt that the amendment to the Carriers Act effected in 1962 - and incidentally, a somewhat similar amendment to the Government Railways Act in the same year - was designed by Parliament to meet this very situation. Clearly the servant or employee of the carrier is now protected. As regards him the words are unmistakably clear, but does the protection extend to this defendant company which it would be difficult to call a servant or employee in normal parlance? In other words, if the defendant company is to be covered by the umbrella of protection (as North J called it [in Campbell v Russell [1962] NZLR 407]) then it must come within the term 'agent'. I think no great significance can be attached to the fact that the defendant was engaged because it had the fork lift hoist. The same position would apply if it had, for example, a barrow. There are many meanings to the word 'agent' and at times it has been necessary to draw distinctions between an agent and an independent contractor or an employee and a glance at the legal dictionaries and legal encyclopaedias show this very clearly. Here however, I return to the purpose of the amending Act ...

The 'mischief' here undoubtedly was that the carrier's liability was limited, but that of those whom he used to perform the physical work of his carrying or to assist him in this was unlimited. It would be rare in days of modern commerce to find, I think, that the work undertaken by a carrier is completely and solely performed by him as an individual. Moreover, a carrying company can only act through men employed by it; so also with a Government Department such as the Government Railways. When heavy loads are to be moved, a carrier will require the assistance of mechanical aids and because of the costly nature of these and the need for them to be operated by competent operators, it may well be convenient to hire or engage the services of the owners of these mechanical aids. ... My view is that the Legislature intended to bring under the umbrella of protection all those handling or assisting in handling the goods to be carried and engaged by and assisting a carrier in the obligations assumed by him. (emphasis added)

[185]

As previously noted, Qantas and Skystar entered into the Skystar Ground Handling Agreement on or about 15 February 2011.[199] That agreement comprised 'Annex B' which incorporated certain terms and conditions of the Standard Ground Handling Agreement as published by the International Air Transport Association in January 2008, including the 'Main Agreement' and 'Annex A', subject to any amendment set out in Annex B.[200]
In Annex B, Qantas and Airlink Pty Ltd were listed as the 'carriers', and Skystar was listed as the 'handling company'.[201]
Clause 1.1 of Annex B provided that Skystar was to provide certain Services at specified rates. The Services comprised (1) Representation, Administration and Supervision, (2) Passenger Services, (3) Ramp Services, (4) Load Control, Communications and Flight Operations, (5) Support Services, and (6) Security.[202] Ramp Services included the provision or arrangement for marshalling at arrival and/or departure.[203]
Clause 3.1 of Annex B provided that Skystar was responsible for providing all equipment necessary to carry out the Services other than some specified carrier owned equipment.[204]
Clause 6.1 of Annex B required Skystar to indemnify Qantas against all liabilities of any nature and howsoever arising which Qantas may suffer, including in connection with the loss of life, personal injury, or damage to property.[205]
Clause 12.1 of Annex B required Skystar to perform the Services in accordance with 'Service Standards', as set out in the 'Carrier's Services Standards' in attachment 1 of Annex B.[206]
Clause 12.2 of Annex B provided, in effect, that Skystar agreed that Qantas' 'Carrier's Supplier Requirements', as set out in attachment 6 of Annex B, constituted instructions for the purposes of Articles 5.1 and 5.2 of the Main Agreement, and Skystar agreed to perform the Services in accordance with the Supplier Requirements.[207]
By cl 12.3, if Skystar, in the opinion of Qantas, failed to perform the Services in accordance with the Service Standards and/or the Supplier Requirements, Qantas reserved the right to withhold payment, and if performance against the Service Standards and/or the Supplier Requirements continued to be unsatisfactory for a period of more than 20 business days, Qantas could terminate the agreement by giving written notice.[208]
Clause 19.1 of Annex B required Skystar at its own cost to ensure that its employees, and agents and subcontractors (if permitted or approved by Qantas) were properly trained and had the requisite experience to efficiently and professionally perform the Services.[209]
Clause 21.5 of Annex B provided:[210]

[190]

Mr Garnett submitted[214] that it is important to have regard to the text of the provision in the context of the statute which includes the general purpose and policy of the provision: Certain Lloyds Underwriters v Cross;[215] R v A2.[216] Although the primary focus is the intention of the Australian Parliament, a construction consistent with the purpose of relevant Conventions would be preferred: Parkes Shire Council.[217] In construing Conventions and local legislation, Australian Courts cannot ignore the words of the local legislation: Povey v Qantas Airways Ltd.[218] The meaning of legislation cannot be altered or amended by foreign courts applying some kind of a gloss to a Convention: Air Link Pty Ltd v Paterson;[219] Povey.[220]
Mr Garnett contended that the word 'agent' in the context of s 33(1) is used in the sense of a representative for whose acts the principal is vicariously liable under the general law of Australia. It is not intended to extend that protection to an 'agent' for whom the carrier would not be vicariously liable.[221] Mr Garnett submitted, in effect, that s 33 assumes that the principal (carrier) is vicariously liable for the tortious acts of its servant or agent because, otherwise, 'there is no need to protect the principal with this sort of provision'.[222]
Mr Garnett submitted that the word 'agent' in the phrase 'servant or agent' in s 33 refers to someone with the authority of a principal to create legal relations between the principal and third parties, or to solicit the bringing about of legal relations between the principal and third parties. Mr Garnett referred in particular to Sweeney v Boylan Nominees Pty Ltd[223] as to the circumstances in which a principal will be vicariously liable for the tortious acts of an agent (see [229] ‑ [[[224]](2021_110.html#_Ref74 Agency is a word used in the law to connote an authority or capacity in one person to create legal relations between a person occupying the position of principal and third parties.

[202]

I quite agree that a contract for carriage from one place to another extends over the whole journey whether upon the line of the contracting company or not, and, further, that it is the carrier's duty to use due and reasonable care during the whole journey. And I think that due and reasonable care extends to everything that is made use of by the contracting party during the course of that journey. For instance, as regards the construction of a railway, it embraces a contract that the rails themselves shall be in a sound and efficient state, so far as due care can make them so, and if they were worn out on a part of the railway not belonging to the contracting company, and which therefore they had not the power to repair, I agree that the decisions would establish that they would be liable for a want of care in those rails not being in a proper state if any damage was sustained thereby; and the same may be said if the switches or anything of that wort were defectively constructed, and it were made out that in the course of a journey over the rails an accident arose from that defective construction. So, again, as regards persons employed by the carrying company or made use of by them. The management of the stations, for example, is in the hands of certain persons; certain regulations are made; and I will suppose that whilst the regulations are proper and sufficient the persons entrusted with the duty of enforcing them, as in the Rhymney Case, fail to do so, and an accident occurs in consequence. In such a case the contracting company in performing their contract make use of those persons, and although the arrangements at the station may be in other hands, still the carrying company would be responsible. ...

...

[However,] I cannot connect with the management of the railway something which is the direct effect not of defective regulations of the company, not of any act to which they were parties, not of neglect of any person whose services they use, but of the neglect of some persons over whom they have no control whatever, and of whose services they do not make use. (emphasis added)

[210]

Section 28 of the Commonwealth Carriers' Act imposes, in substitution of any other liability,[275] a strict liability for personal injury on the part of the carrier. It is a liability that is distinct from any liability that might arise under the domestic law,[276] and forms part of an interlocking scheme, including s 33, s 34, s 36 and s 37, in which the scope of a carrier's liability for personal injury is comprehensively addressed by the statute.
Contrary to Mr Garnett's submission, s 33 does not assume that the principal (carrier) is vicariously liable for the tortious acts of its servant or agent because 'otherwise there is no need to protect the principal with this sort of provision'. If the carrier were vicariously liable for the torts of its employees or independent contractors, ordinarily under the general law, the employee or independent contractor would be required to indemnify the carrier - not the other way around (see [238] above). The purpose of s 33 is to be considered in the context of the Conventions regarding carriage by aviation (relevantly, the Warsaw Convention and the Hague Protocol), not the common law generally or the general law of Australia in particular.
It is apparent from the text of s 33 of the Commonwealth Carriers' Act, in the context of the statute as a whole,[277] that it operates to prevent a plaintiff circumventing the protection afforded to the carrier under pt IV of the Commonwealth Carriers' Act. It does this by providing to other defendants, who may in the commercial context of international air carriage claim or procure indemnity against (including by obtaining a payment or reimbursement from or an agreement for payment or reimbursement from) the carrier, the benefit of the same limitations as are available to the carrier (relevantly, s 31 and s 34). Section 33 in this way contributes to a settled allocation of risks within the industry, and thereby greater efficiencies in associated insurance markets, with (presumed) corresponding cost benefits across the sector as a whole, including for the benefit of the travelling public.
Moreover, it is not merely judgments on indemnity claims against which s 33 is evidently designed to protect. Indemnity claims against carriers, even ones thought to be unmeritorious under the general law, will inevitably involve legal costs and settlements, also eroding the benefits to be obtained from the settled allocation of risks and the efficient operation of insurance markets in international aviation.[278]
Mr Garnett's (and Karratha's) proposed construction, with its recourse to the operation of the domestic law, is inconsistent with the purposes of the Commonwealth Carriers' Act in this context. As noted earlier, the cardinal purpose of the Commonwealth Carrier's Act in giving effect to the relevant Convention is to achieve uniformity in the law relating to liability for air carriers, so that, in those areas with which the Convention deals, it contemplates a uniform code that excludes resort to domestic law.[279] The evident object of s 33 is not served by construing its operation as dependent upon the interstices of the domestic law regarding vicarious liability in its application to agents - particularly in an area where a fully satisfactory rationale for liability has been slow to appear, and the policy behind it has not been fully articulated.[280]
Further, it is an improbable intention to impute to the legislature that the reference to 'agent' in the phrase 'servant or agent of the carrier' in s 33 is concerned only with persons who, under the general law, have the authority to create or solicit the bringing about of legal relations between the carrier and third parties. Such a construction adds a layer to the operation of s 33 which is not expressed in its language and which serves no evident purpose. The phrase is more apt to connote (generally speaking) those entities and persons through which, or by whom, the carrier provided the contracted service of carriage. That class of persons may affect the safety of the passenger, irrespective of whether, in addition, they are authorised by the carrier to create or solicit legal relations between the carrier and third parties.[281] The plaintiff's claim for personal injuries would, typically, arise from the carriage undertaken in the performance of the contract of carriage, and not in the performance of any authority to create or solicit the creation of legal relations with third parties.
Also, if the word 'agent' in the phrase 'servant or agent' in s 33 were construed to mean a person (1) authorised to create, or authorised to solicit the creation of, legal relations between the carrier and third parties, and (2) who committed a tort in the course of, and for the purposes of, the execution of that agency, the provision is tautologous. That is because, as senior counsel for Mr Garnett accepted,[282] the additional requirement that, in order to obtain the benefit of the exculpatory provision, the agent must prove that he or she 'acted within the scope of his or her ... authority' would be otiose. Nor is Mr Garnett's construction of the words 'servant or agent' in s 33 consistent with the use of that term in the definition of 'baggage' in s 26(1) of the Commonwealth Carriers' Act, which plainly does not incorporate an element of authority to create or solicit the creation of legal relations with third parties.
Regard may also be had to the American case law referred to in [161] ‑ [182] above as to the (objectively) intended scope of operation of the Warsaw Convention, and, in that context, in considering the proper construction of the provisions of pt IV of the Commonwealth Carriers' Act. The American case law indicates that even absent an express provision such as s 33 of the Commonwealth Carriers' Act, the provisions of the Warsaw Convention concerning the limitations on liability on the part of the carrier are not confined to carriers and persons authorised by the carrier to create or solicit the creation of legal relations between the carrier and third parties.[283]he reasoning in Reed,283 in particular, is persuasive, as is the reasoning of Lord&#[284]Denning in Scruttons284 and Perry J in Mason Bros.
It follows from the foregoing that the words 'servant or agent' in s 33 form a compendious phrase which, in general terms, is apt to connote entities and persons through which, or by whom, the carrier provided the contracted service of carriage. It may be that, as a practical matter, the 'agents' successfully claiming the benefit of the protection in s 33 will typically be those persons, including independent contractors, for whose negligence the carrier would be vicariously liable under the general law. But insofar as that is the case, it is a consequence of the proper construction of s 33 of the Commonwealth Carriers' Act; it is not because the general law controls or drives the proper interpretation of s 33.
It is sufficient to conclude, for present purposes, that the denotation of the phrase 'servant or agent' in s 33 includes an independent contractor engaged by Qantas (in this case, Skystar) to marshal passengers from the aircraft to the terminal in the performance of a function required of Qantas under the contract of carriage - disembarkation. It is unnecessary to consider for present purposes whether the phrase 'servant or agent' in s 33 would extend to subcontractors of the carrier. Nor does this case raise for consideration the position of repairers or manufacturers the subject of the discussion in Shawcross and Beaumont: Air Law referred to in [184] above.
Accordingly, the submissions of Mr Garnett and Karratha as to the proper construction of s 33 of the Commonwealth Carriers' Act should be rejected.

[214]

The 'Term' is defined to include the Initial Term which, under sch 1, is defined, in effect, as a period of five years commencing 1 June 2012.
The 'Premises' are defined to mean, in effect, an area of 48.7 sqm within the 'Airport Terminal', which, in turn, is defined to mean the airport terminal building situated on the 'Land' (being, relevantly, in effect, the land upon which the terminal sits).[285]
The 'Lessee's Rights' are defined in cl 11.2 to include the right of Skystar to use the Common Areas, the facilities in the Common Areas, the services supplied to the Common Areas, and the services supplied to the facilities in the Common Areas, in common with other persons having similar rights. The 'Common Areas' are defined in cl 11.1 to mean the parts of the Land and the Airport Terminal from time to time set aside by Karratha as areas open to the public or for common use by Skystar and other tenants of the Airport Terminal. They do not include the tarmac or the place where Mr Garnett's accident occurred.[286]
By cl 4.1, Skystar must, amongst other things, keep the Premises in good substantial and functional repair, and repair and make good any damage to the Premises where that damage results from, or is attributable to, the want of care by Skystar or 'the Lessee's Employees and Visitors'. The latter term is defined in cl 1.1 to mean any person upon the Premises other than Karratha and its employees, agents and contractors, and Skystar's employees, agents, customers, invitees, visitors and contractors at any time upon the Land, whether within the Premises or, more generally, the Airport Terminal.
Clause 4.2 includes provisions to the effect that Skystar must paint, in a good and tradesman‑like manner and otherwise to Karratha's reasonable satisfaction, all parts of the Premises which had been previously painted. Clause 4.3 includes a requirement for Skystar to keep the Premises thoroughly clean. Clause 4.4, inter alia, provides that in relation to floor coverings installed in the Premises by Karratha, Skystar must maintain them in good, clean and substantial repair and condition, and make good all damage to them arising otherwise from fair wear and tear. Clause 4.5 provides that, subject to cl 4.6, Skystar must not, without the consent of Karratha, make any alterations or additions to the construction or arrangement of the Premises. Clause 4.6 includes provisions to the effect that Skystar must comply with, observe and indemnify Karratha in respect of all written laws and all orders, requirements and notices from or by any Local or Public Authority which relate or apply in any way to the Premises or to the use or occupation of the Premises by Skystar, and that if any such compliance or observance includes a requirement for structural alterations, Skystar's obligations only apply insofar as they relate to Skystar's business or the use to which the Premises are put by Skystar.
Clause 4.7 provides, inter alia, that Skystar must (1) ensure that all works which it carries out, or is required to carry out, under cl 4.5 and cl 4.6 are carried out only by contractors and tradesmen approved by Karratha and in accordance with plans specifications and schedules of works, materials and finishes approved by Karratha before any of the works are commenced, (2) pay on demand to Karratha the costs to Karratha and its employees, agents and independent contractors in respect of the grant of those approvals, and (3) ensure that those works are carried out in accordance with the Lease.
Clause 5 deals with the use of the Premises. By cl 5.1 of the Lease, Skystar 'must use the Premises only for the Permitted Purpose'.[287] In sch 1 at item 8, the 'Permitted Purpose' is defined as 'ground handling, office and ramp functions'.[288]
Other obligations on the part of Skystar under cl 5 include:
1. The obligation not to do, or permit to be done, in or near the Premises, anything which is a nuisance, grievance, disturbance or annoyance to Karratha or to any tenant or occupier of other premises in the vicinity of the Premises (cl 5.2).
2. Skystar must not place, or permit to be placed or be maintained, in the Premises or on any exterior part of the Premises (except with the consent of Karratha and any relevant Public Authority) signs, awnings, canopies, radio antenna, or other apparatus (cl 5.3).
3. Skystar must maintain in good condition and repair anything approved by Karratha under cl 5.3 (cl 5.4).
4. Skystar must not, without the consent of Karratha, use the Premises, or permit the Premises to be used, in connection with the Premises any form of lighting, heating, cooling or ventilation, other than those installed at the commencement of the Lease (cl 5.5).
5. Skystar must not, without the consent of Karratha, bring into the Airport Terminal, or onto the Premises or the Land, any heavy machinery, plant or equipment likely to damage, or in the reasonable opinion of Karratha is likely to damage, any part of the Land, the Airport Terminal, or the Premises (cl 5.6).
6. Skystar must not, without the consent of Karratha, install or use any electrical equipment on the Premises that overloads, or has the capacity to overload, the electricity conveyed to or through the Premises (cl 5.7).
7. Skystar must comply with, and observe, the reasonable requirements of Karratha in respect of the air conditioning plant in the Premises (cl 5.8).
8. Skystar must not use, or permit to be used, any toilets, sinks, drains, or other plumbing facilities in the Premises for any purpose other than that for which they were designed (cl 5.9).
9. Skystar may make deliveries to and from the Airport Terminal at the times and in the manner which ensures as little interference as is reasonably practicable with persons using the Airport Terminal (cl 5.10).
10. Skystar must not obstruct, or permit to be obstructed by the 'Lessee's, Employees and Visitors', any part of the Land (cl 5.11).
11. Skystar must not, without Karratha's consent, charge or give any security interest over or affecting any plant or equipment affixed to the Premises (cl 5.12).
12. Skystar must not do, or permit to be done, anything in breach of any applicable town planning scheme or zoning, or, as a result of which, the zoning or permitted use of the Premises for their present purposes may be cancelled or other prejudiced or altered (cl 5.13).
13. Skystar must use its best endeavours to protect and keep safe the Premises, and any property contained in the Premises from theft or robbery (cl 5.14).
14. Skystar must not keep or store, or permit to be kept or stored, on the Premises anything which is not essential to the proper use of the Premises for the Permitted Purpose (cl 5.15).
Clause 6 of the Lease provides:[289]

[228]

Skystar submitted, in effect, that the judge was correct in her interpretation of cl 6.2 of the Lease. Skystar submitted that:[296]
1. The 'rights and interests' referred to in cl 6.2 are limited to the 'rights and interests' of Karratha pursuant to the Lease. The Lease is concerned with the lease of part of the terminal at Karratha Airport. The demised premises are entirely within the terminal. Further, the 'Land' as defined in the Lease is also within the terminal and does not extend to the apron. Accordingly, the subject matter of the Lease has nothing to do with the operations of 'airside' at the airport. Karratha's rights and interests under the Lease do not extend to 'airside' operations.
2. The construction advanced by Karratha involves a commercial nonsense. It involves a tenant occupying a space of little over 48 sqm in the airport terminal to effect insurance cover for Karratha for claims arising from its negligence over its entire operations at the airport.
3. The court should apply the approach to the construction of cl 6.2 adopted in Erect Safe. The indemnity in cl 6.1 expressly does not cover Karratha for liabilities caused or contributed to by Karratha. Clause 6.2 comes immediately after cl 6.1. They are both found in the one clause, cl 6, and, in accordance with the reasoning in Erect Safe, the promise to procure insurance should be construed as supporting the limited right of indemnity and go no further.
4. In Erect Safe and Bitupave, the requirement was dedicated to the taking out of public liability insurance. Here, the requirement applies to the taking out of first party property damage (cl 6.2(a) and cl 6.2(b)), public liability insurance (cl 6.2(c)), employer's liability insurance (cl 6.2(d)), and first party and third party motor vehicle insurance (cl 6.2(e)).
5. The intention of cl 6.2 is for Karratha to be insured for its rights and interests in the insurance policies described in (a) ‑ (e) of cl 6.2, but not for Karratha to be a named insured under any of the policies. The drafter of the subclause would have been aware that Karratha's interests being recorded in the first party insurance policies taken out by Skystar would protect Karratha to the extent of its interest as lessor in the property the subject of those policies: s 48 of the Insurance Contracts Act 1984 (Cth).
6. The drafter would also have been aware that Skystar's employer's liability insurer would be most unlikely to name Skystar's lessor as a named insured on Skystar's policy, and that a motor vehicle insurer would be unlikely to name Skystar's lessor as a named insured on a policy over a motor vehicle in which the lessor has no interest. Also, the drafter would have been aware of the commercial unlikelihood of persuading a public liability insurer of the lessee of a small space in a large facility to name as an insured the owner of the facility.

[229]

The obligation in cl 6.2(1)(c) of the Lease is on Skystar to effect public liability insurance for the 'respective rights and interests' of Karratha and Skystar. Karratha did not dispute that the words 'respective rights and interests' in this context referred to the rights and interests of the parties pursuant to the Lease.[297]
It is unnecessary to determine the metes and bounds of the obligation on Skystar to effect public liability cover in respect of the respective rights and interests of the parties pursuant to the Lease. In particular, it is unnecessary to determine whether cl 6.2(1)(c) should be read as only requiring public liability cover in respect of Skystar's obligation to indemnify Karratha under cl 6.1(2) of the Lease. For present purposes, it is sufficient to observe that Karratha has no right or interest pursuant to the Lease concerning its position as occupier of the airport generally and, in particular, the tarmac and the area between bay 1 and the terminal. The terms of the demise are in cl 2, set out in [256] above. The demise does not include the airport generally, and no rights are 'reserved' to Karratha under cl 2(b)(iii) in respect of the airport land beyond the Premises, the Common Areas or t[298]Car Park.298
Whilst the Lease refers to land beyond the Premises for certain purposes in connection with the demise, the land referred to in this regard is (1) the Airport Terminal,[299] (2) the Land,[300] (3) the Common Areas,[301] (4) the Car Park,[302] and (5) (on occasions) areas 'near' or 'in the vicinity of' the Premises.[303] There is nothing in the Lease connecting the public liability cover the subject of cl 6.2(1)(c) with Karratha's liability as occupier of the airport more generally. The only implicit reference to the Karratha Airport more generally is in relation to the documents referred to in cl 9.3, however that clause is itself confined in its operation to the Premises, the Airport Terminal and the Land (the latter two through the definition of 'Lessee's Employees and Visitors').
The requirement that Skystar only use the Premises for 'ground handling, office and ramp functions' (cl 5.1, sch 1, item 8) confines the purposes for which Skystar may use the Premises. It operates as a limitation on Skystar's rights as occupier of the Premises conferred by the demise. It gives Karratha a corresponding right or interest in ensuring that the Premises are used by Skystar only for the purpose stipulated, but that is the extent of its right or interest in that matter. Clause 5.1 has no bearing on Karratha's interests in its capacity as an occupier of the airport land more generally, including the area in which the lighting tower and plinth are located.
Karratha's submissions referred to in [270] above cannot be accepted. It is incorrect to contend that the Lease 'is more than just a lease'. The Lease is, only, a demise of the Premises, and Skystar's use of the airport land more generally beyond the Premises derives from the Karratha Airport Agreement with Qantas.

At a glance

Court

Decision date

Before

Source

Judgment (385 paragraphs)

The judge's findings as to Skystar's negligence

The judge's findings as to Skystar's liability under the Carriers' Acts

The proper approach to the construction of the Commonwealth Carriers' Act

Legislation Cited (15)

Cases Cited (35)