Malaysian Airline Systems Berhad v Krum [2005] VSCA 232

2 I have had the advantage of reading in draft the reasons for judgment of Ashley, J.A. and with respect I agree with his Honour for the reasons that he gives that the appeal should be dismissed.

3 I would simply add with respect to the appellant's contention concerning the position of the lumbar support, that it makes as little sense to me as it would to contend that it is not an unexpected or unusual event for the elevators of the aeroplane to be stuck somewhere within the range of normal operation. Elevators stuck at the down position may be perfectly well adapted for descending, but not particularly satisfactory for climbing. The lumbar support is in essential respects the same.

Statement of the Case

4 This is an appeal against judgment entered for the respondent, Henry Krum, against the appellant, Malaysian Airline Systems Berhad (MAS), in the sum of $144,998.50 plus interest and costs, following a trial before a judge of this Court.

5 The judge found that the respondent had suffered injury caused by an accident whilst on board an aircraft operated by the respondent, in which case the respondent's claim, founded on Article 17 of the Warsaw Convention as amended at the Hague in 1955 and by Protocol No. 4 of Montreal 1975, in force by operation of the Civil Aviation (Carriers Liability) Act 1958 (Cth), succeeded. The flight had originated in Australia. Injury, as the judge found, was to the respondent's lower spine, and was sustained whilst the respondent was on board the aircraft during its Kuala Lumpur to Paris leg, which commenced on 24 February 2001.

6 Two issues are raised on the appeal. Expressed as propositions, they are, first, that the judge wrongly concluded that there was a defect in a particular portion of the seat occupied by the respondent during the particular leg of the flight, and that the same was a cause of injury and damage to the respondent. Second, that the circumstances relied upon by the respondent could not constitute an "accident" for the purposes of Article 17. It is convenient to split the first issue into two.

The site of a defect

7 The learned trial judge found that the respondent, who was travelling in the first class section of the aircraft, was requested to sit in a seat in respect of which the electrical system pertinent to operation of the recliner and lumbar support functions was defective; and that he was so requested after finding that his allotted seat was occupied. His Honour found also that, the respondent having discovered the fault as it applied to the reclining function, and having drawn this to the attention of a steward, the latter located a manual control lever on the side of this seat; and that, using such lever, either the steward or the respondent lowered the backrest of the seat so that the respondent could get some rest.

8 It was not in issue that the lumbar support to which I referred a few moments ago - a six inch by six inch fibreglass composite square located in the backrest of the seat[1], and behind one inch of padding - was immovable, being stuck in whatever position it had been in when the electrical system failed, that being a position within its normal range of movement. In the ordinary course it was capable of being moved towards or away from the passenger's back, so enabling configurations suitable for sitting or for reclining. So also, in the ordinary course, it was capable of vertical movement over a four inch span.

9 The respondent gave evidence that when the seat was reclined and he lay down - not before - he found a part of the seat to be very hard; and that this occasioned him discomfort.

"Well, on lying down the - the middle bit, the lumbar bit, was rock hard like lying on a marble bench top. ..."

And -

"I lay in the seat and realised it was hard and uncomfortable ... ."

10 The respondent said that he drew this situation to the attention of a steward, that he looked for alternative seating, but that in the end he made the best of a bad job and sought to settle down in the seat with cushions and blankets. Despite this -

"There was still a level of uncomfortableness."

"...took the sleeping pill and essentially slept in it despite the discomfort."

"... recollection [was] that [he] used pillows as best [he] could and it was still uncomfortable."

11 The learned judge, who had the advantage of seeing and hearing the respondent, accepted him as a witness of truth. He accepted the reliability of the evidence to which I have just referred. He also accepted the respondent's evidence upon a number of disputed questions. He inferred that the segment of the seat which was very hard, and which caused the respondent discomfort, was the lumbar support positioned as it then was. In so concluding he rejected evidence given by the respondent, both viva voce and by marking a photograph, that the hard segment of the seat was in its cushion. That evidence, his Honour concluded, had been given truthfully; but it did not accord with the true situation, which was that the hard segment was in the backrest of the seat.

12 The appellant submitted on appeal that his Honour's finding was wrong. I do not agree. Once accept, as his Honour did, the respondent's evidence that there was a very hard segment of the seat which caused him discomfort when the seat was reclined, the great likelihood is that the source of the problem was the lumbar support in a fixed, advanced[2] position. The evidence was clear, and his Honour specifically found, that there was no hard segment in the cushion of the seat - that is, the area of the seat which the respondent identified as containing the hard part.

13 There was, again, no cross-examination of the respondent as might suggest that what he felt as the hard part of the seat was actually an expression of symptoms of spinal discomfort. It would have been speculative for his Honour to have concluded that such was the explanation.

14 Still further, it was not suggested in evidence that the respondent had examined the seat so as to identify the site of the hard segment. Rather, he gave evidence of where it was that he felt discomfort by reason of the hard segment.

Thus -

"It was your back in particular, your lower back, that was the part of you that was subject to discomfort, wasn't it? ... Well, if you look at the diagram [of the seat], that would seem to be the approximate relationship."

And

". . . when you found the seat uncomfortable, where in your body ... was the discomfort? Well it was in the middle section of my body so -- - -

When you - - - ? - - - It wasn't the chest and head and it wasn't the legs, it was the bit in between.

The bit in between would be from just below your shoulders to somewhere above your legs. Can you be more specific than that? - - - I would say, I do say from the upper thighs to around the diaphragm."

It was really a conclusion on the respondent's part where that part of his body corresponded with the various sections of the seat.

15 His Honour noted that the respondent was 6'2'' in height. He saw the photographs of the seat. The respondent's evidence and those circumstances alone would justify his Honour's conclusion as to the site of the hard segment. But there were other matters also, to several of which I have referred. I do not agree with the submission of counsel for the appellant that, whether viewed singly or in combination, those matters provided no support for his Honour's conclusion as to the position of the lumbar support and its relevance to the onset of the respondent's discomfort.[3]

16 The judge might have reasoned that the respondent's evidence that there was a hard segment in the lower section of the seat was necessarily wrong; and that this was a reason to reject altogether the respondent's evidence that there was a hard part. But in my opinion it was considerably more likely that the respondent had mistakenly identified the lower section of the seat as the area of the hard segment. Quite apart from the judge's acceptance of the respondent as a witness of (intended) truth, there was an obvious explanation why there might have a hard part in the backrest section of the seat. In my respectful opinion the judge's conclusions that there was a hard segment in the seat, and where it was located, are impregnable.

Relationship between defect and injury

17 The judge accepted the respondent's evidence that, despite discomfort in the mid portion of his body, he had some eight hours' sleep; and that when he awoke, he was suffering from pain in his left leg. It was not in debate that the pain was sciatica deriving from damage to the L5/S1 disc. The judge accepted the respondent's evidence that sciatica had persisted with varying intensity thereafter until trial.

18 There was evidence that the respondent had suffered from symptoms attributable to L5/S1 disc damage in 1989. There was thus no doubt that the disc was degenerate before the flight in question. But the judge also accepted the respondent's evidence that he had been symptom free for some ten years preceding the flight, during which period he had frequently travelled in planes without difficulty; and that during such period he had engaged not only in his professional work but also jogging, an occasional game of golf, family life with a small child, driving a motor vehicle, and so on.

19 The judge accepted evidence that the onset of symptoms in February 2001 could have resulted from disc degeneration "without external stress"; but he considered that the probabilities favoured there being a causal connection between particular circumstances of the flight and the onset of symptoms.[4] To my mind his Honour's conclusion should readily be accepted. One can accept the proposition that eight hours' sleep in an aeroplane seat, absent any particular source of discomfort, might induce worsening in the back condition of a passenger with a damaged lumbosacral disc. But it seems to me much more likely in this case that discomfort caused by the position of the lumbar support caused the respondent to take up a position which placed particular strain on his lower spine, this at least leading to the development of sciatica.

20 Counsel for the appellant submitted that the respondent had not given direct evidence of adopting any particular posture, as might lead to an inference that such posture and spinal injury were related. It is true that the respondent gave no evidence of adopting a particular posture. But he did give evidence of positioning himself as best he could having regard to the discomfort caused by the hard segment. He said, inter alia,

"I attempted to make myself as comfortable as possible with the pillows and blankets and things and it was in full recline. The - the magnitude of the recline was exactly the same as every other seat around me; the difference being that - was the hard marble bench top surface in the middle that - that was the cause of the discomfort."

21 Once find, as his Honour did, that the position of the lumbar support was the source of discomfort, it seems to me an available inference that the respondent did position himself awkwardly; and that, given the development of symptoms referable to an abnormal spine which had been symptom-free for years, the source of discomfort, the posture adopted in response thereto, and the development of symptoms, were causally related.

22 His Honour properly considered the entirety of the evidence, not simply expert medical opinion, before concluding that there was a probable connection between the position of the lumbar support, the respondent's discomfort and the respondent's "subsequent condition".[5] In my respectful opinion, his summary of the evidence of the various medical specialists was , with one qualification, accurate. I would summarize the doctors' evidence, somewhat more expansively than did his Honour, as follows:

• Mr Speck, an orthopaedic surgeon, gave evidence that the respondent's symptoms were consistent with a disruption of the L5/S1 disc - seen on MRI scans performed on March and September 2001 - which had produced some irritation of the spinal nerves producing sciatic symptoms. It was likely that abnormal posture forced upon the respondent by the seat produced the symptoms.

• Associate Professor Buchbinder, a rheumatologist whom the respondent first consulted in mid March 2001, gave evidence that she diagnosed left-sided sciatica at the time; and that an MRI scan performed on 21 March 2001 showed degeneration of the L5/S1 disc with a central disc disruption with annular disruption. The disc was in contact with the left S1 nerve root. The doctor gave no evidence with respect to causal connection between the respondent's symptoms and the circumstances of the particular flight. Her analysis of the MRI scan explained his symptoms.

• Mr Dohrmann, a neurosurgeon whom the respondent first consulted in January 2003, opined that the patient was suffering from persistent left sciatica with symptoms consistent with chronic left S1 nerve root compression by disc prolapse. It was likely, though not entirely certain, that the sciatic symptoms related to disc prolapse at L5/S1 which had been demonstrated by MRI scans in September 2001 and January 2003. The doctor gave evidence that:

"I don't doubt that there was prior degenerative change in that particular lumbar disc which to the best of my knowledge was either free of symptoms or minimally symptomatic, but I would presume and expect that a long period in a seat that was damaged could have, as it were, been the straw that broke that particular disc's back."

He conceded that beyond the asserted temporal connection he was "unable to make any specific analysis". But he also said that -

"... I think that's true that many people who ultimately do come to surgery for disc prolapse will describe an incident which appears to represent the onset of significant and persistent symptoms and that incident may be trivial or fairly trivial; digging in the garden, lifting something up at work, perhaps sitting in a damaged seat. It was in that sense that I meant lumbar disc prolapse as a condition being essentially degenerative in nature. In almost every instance there is prior change in that disc occurring as a prelude, if you like, to - to prolapse causing sciatica."

• Mr Nye, a neurosurgeon engaged by the appellant, opined in a report dated 11 June 2002 that the respondent suffered from degenerative disease of the lumbosacral disc, associated with a modest disc bulge, consistent with the respondent's description of left-sided sciatica. He did not consider that there was evidence to suggest "actual injury" during the flight, but symptoms may have been precipitated by a position which the respondent adopted. Cross-examined, he conceded that this was the probable situation if the seat had been uncomfortable and that this had affected the respondent's posture.

• Mr Elsner, an orthopaedic surgeon engaged by the appellant, opined that the respondent's symptoms were probably due to an annular tear of the L5/S1 posterior disc fibres - that damage having been demonstrated at least by an MRI scan performed in September 2001. The circumstances of the flight had not caused the primary degenerative changes in the disc, nor the annular tear. But "sitting/lying in a semi-reclining position for eight hours may have exacerbated the underlying condition"; or the condition "may have been rendered symptomatic". By "exacerbated", the doctor said, he meant a temporary increase in symptoms due to an underlying pathology.

Save with respect to Mr Elsner, my summary of the evidence of the specialist doctors, and his Honour's summary, are in accord. Considered together with the sequence of events which his Honour found to be established, it would have been surprising if he had not been satisfied that there was a causal link between the discomfort caused by the positioning of the lumbar support and the development of persisting sciatica.

Did an accident cause the damage?

23 The learned judge said this:

"The defendant contends that the circumstances which caused the plaintiff to be injured cannot be regarded as constituting an accident. I reject that contention.

(a) I am satisfied the plaintiff was injured as a result of a combination of circumstances which placed external stress upon his lumbar spine.

(b) I am satisfied such circumstances were unusual and unexpected in that:

(i) they involved the use by the plaintiff as a passenger of a defective seat which was not operating in its usual, normal and expected manner, and as a result contained a component which constituted an unusual, abnormal and unexpected component namely a lumbar support fixed in a position which rendered the seat uncomfortable by reason of a hard protrusion when such seat was placed in the fully reclined position;

(ii) the plaintiff was invited by the defendant's cabin crew firstly to use the defective seat and secondly to use it in the reclined position when the lumbar support could not be adjusted; and

(iii) the defendant's cabin crew did not relocate the plaintiff when the unexpected defect in the seat and the discomfort consequent upon it became apparent during the flight.

In my view the above circumstances taken individually or alternatively together constituted an accident or sequence of accidents whether that question be approached from the point of view of the ordinary reasonable passenger or the 'disinterested bystander who is apprised of all relevant circumstances'."

24 His Honour thereafter considered and rejected five submissions advanced for the appellant why a finding of accident within the meaning of article 17 should not be made. Variants of two of those submissions were pursued before this Court.

25 On the appeal it was accepted, as it must be, that the concept of "accident"

"invites two questions: First, what happened on board . . . that caused the injury . . . and secondly, was what happened . . . unusual or unexpected?"[6]

26 Again, it was not in dispute that the meaning given to "accident" - that is, an unusual or unexpected event or happening external to the passenger - should be flexibly applied after assessment of all the circumstances surrounding a passenger's injuries, as O'Connor J, speaking for the Supreme Court of the United States, said in Air France v. Saks.[7]

27 The appellant advanced three submissions concerning "accident". There was, it was said, no accident because -

• The respondent did not suffer injury caused by the use of a defective seat. He suffered injury as a result of sleeping on a reclining seat the cushion of which he found hard but which was not defective.

• Even if the very hard segment of the seat described by the respondent was the lumbar support, the same was positioned somewhere within its normal range of movement. In such circumstances it could not be said that lying on a seat, part of which was hard but was covered by padding, constituted an unexpected or unusual event external to the respondent.

• It was irrelevant whether the appellant had failed to relocate the respondent after the latter had identified the hardness in the seat to one of the cabin crew. This was not a case - compare Olympic Airways v. Husain[8] - about confrontation and refusal. The judge had fallen into error, considering, by implication, what the appellant could or should have done in the circumstances.

28 Those submissions addressed, in the main, quite confined issues. They might perhaps have necessitated consideration of matters towards the periphery of principle. But in my opinion the question of "accident" can be resolved simply, and within well-recognised boundaries. It can be resolved by considering the appellant's first two submissions.

29 The first submission must be rejected because, as I have already said, it was well-open to the learned trial judge to find that there was a direct causal relationship between the respondent lying on a seat made uncomfortable by the positioning of its lumbar support when the seat was reclined, and the respondent suffering onset of sciatica. That is the finding which, considering all the evidence, I would make.

30 I go to the appellant's second submission. In my opinion it should also be rejected. Accepting that the lumbar support was fixed at some point within its normal range of movement, it does not follow that such point was not quite unsuitable when the seat was in its reclined position. The respondent's evidence, as understood by the learned judge, suggested that the position of the lumbar support when the seat was in its reclined position was indeed unsuitable. Recall the evidence of the respondent that he did not notice the hard segment until the seat was reclined.

31 In my opinion, the circumstance that the lumbar support was fixed in a position which was unsuitable when the seat was reclined together with, importantly, the fact that the position of the support could not be altered because its operating mechanism was broken, can readily be described as an unusual or unexpected event or happening; one causative of damage to the respondent because it induced him to adopt an awkward posture in response to discomfort.

32 The conjunction of circumstances which in my opinion warrant the pertinent description were not the less so because, as it appears, the seat mechanism was broken before the flight commenced. That was only part of the equation.

33 The appellant's argument was in my opinion flawed because it sought to isolate the position of the lumbar support from circumstances - that is, the seat being reclined and the fault in the operating mechanism - which combined with the position of the support to make the last-mentioned a particular and irremediable hazard. Senior counsel for the appellant accepted that it was a critical element of his submissions that the lumbar support had been fixed within its normal range of movement. That meant, he said, that neither such position nor its consequences could be characterised as an unexpected or unusual event. Those submissions focussed upon only a fragment of the picture. The respondent was not simply allocated a seat the operating mechanism of which was broken. He was allocated a seat which, when it was manually reclined, had its lumbar support positioned so as to cause him discomfort; such support, because its operating mechanism was broken, abnormally being incapable of adjustment so as to relieve his discomfort.

34 In the course of his submissions, senior counsel for the appellant said that if the position of the lumbar support had been such that it protruded beyond the profile of the backrest, then it could be characterised as an accident; but not otherwise. It was a concession safely made because there was no direct evidence that the lumbar support did so protrude. The appellant would have it, apparently, that if the normal range of travel of the lumbar support created a hard segment when the seat was in its reclined position, that circumstance alone would be an accident if the segment protruded beyond the ordinary profile of the backrest; but if it did not so protrude, then it would not. That argument served, in my opinion, to highlight the over-narrow focus, and as well the unreality, of the appellant's argument.

35 Rejection of the first two submissions advanced for the appellant concerning "accident" means that the appellant's challenge to the judge's conclusion fails. It is therefore unnecessary to deal with the appellant's third submission; just as it is unnecessary to deal with all of the matters which his Honour concluded, taken individually or together, constituted an accident or a series of accidents.

Conclusion

36 I would dismiss the appeal.

[1] Its bottom edge, when the support was moved to its lowest point in its range of vertical travel, was about one inch above the split between the seat cushion and the backrest.

[2] By contrast with "retracted."

[3] So, for instance, his Honour referred to the potential for the lumbar support to create a very hard element when the seat was reclined, to evidence given by the in-flight supervisor, and to the respondent's experience with seats of the type in question - that is, seats which were not compromised in their adjustability.

[4] It is implicit in that conclusion that his Honour found that the underlying condition had itself been aggravated, this producing the symptoms. But no point was raised, if it could have been, that development of persisting pain in the context of a pathologically abnormal back was not injury. So whether his Honour in fact found that the underlying pathology had been aggravated need not be addressed.

[5] As to which see, for example, Dahl & Anor v. Grice [1981] VicRp 50; [1981] V.R. 513 at 522 per Gobbo, J.

[6] Povey v. Qantas Airways Ltd [2005] HCA 33; (2005) 79 ALJR 1215 at 1222 [36] per Gleeson, C.J., Gummow, Hayne and Heydon, JJ.

[7] [1985] USSC 43; (1985) 470 US 392 at 405.

[8] (2004) 540 US.